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is therefore governed by Article 18.02(10) of the Texas Code of Criminal Procedure, which provides as follows: Art. 18.02 Grounds for Issuance A search warrant may be issued to search for and seize: (10) property or items, except the personal writings by the accused, constituting evidence of an offense or con stitut ing evidence tending to show that a particular person com mitted an offense. D. Article 18.01(c) of the Texas Code of Criminal Procedure is spe cific for search warrants issued under 18.02(10) C.C.P. and provides as follows: The affidavit must show sufficient facts to establish probable cause: 1. That a specific offense has been committed 2. That the specifically described property or items that are to be searched for or seized constitute evidence that a particular person committed that offense, and 3. Property or items are located at or on the particular per son, place, or thing to be searched. E. Who can issue a Search Warrant issued under Article 18.01(c) • judge of a municipal court of record or (constitutional) county court who is also an attorney licensed by the State of Texas • judge of a statutory county court (CCL) • district court judge • justice of the Court of Criminal Appeals • justice of the Supreme Court NOTE: Justices of courts of appeals were not empowered stat u torily to issue or sign an evidentiary search warrant prior to September 1, 2009. Article 18.01 was amended, ef fec tive Sep tem ber 1, 2009, to provide that any magistrate who is an attorney licensed in Texas may issue a search war rant for blood in an in toxi cation related case. F. Article 38.23 of the Texas Code of Criminal Procedure prohibits the use of evidence obtained in violation of law and provides as follows: Article 38.23 Evidence Not to Be Used (a) No evidence obtained by an officer or other per son in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evi dence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue here under, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith re li ance upon a warrant issued by a neutral magistrate based on probable cause. G. Article 18.04 of the Texas Code of Criminal Procedure gov erns the contents of a search warrant and provides as fol lows: A search warrant issued under Chapter 18 shall be suffi cient if it contains the following requisites: 1. That it run in the name of “The State of Texas”; 2. That it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the per son, place, or thing to be searched; 3. That it command any peace officer of the proper county to search forthwith the person, place or thing named; 4. and that it be dated and signed by the magistrate. H. Transportation Code Section 724.012 sets out the re quirements for taking a specimen of breath or blood for a person accused of DWI and reads as follows: §724.012 Taking of Specimen (a) One or more specimens of a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person: (1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or (2) was in violation of Section 106.041, Alcoholic Bev erage Code. (b) A peace officer shall require the taking of a specimen of the person’s breath or blood if: (1) the officer arrests the person for an offense un der Chapter 49, Penal Code, involving the
op er a tion of a motor vehicle or a watercraft; (2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the of fi cer reasonably believes occurred as a result of the offense; (3) at the time of the arrest the officer reasonably be lieves that as a direct result of the accident: (A) any individual has died or will die; or (B) an individual other than the person has suf fered serious bodily injury; and (4) the person refuses the officer’s request to submit to the taking of a specimen voluntarily. (c) the peace officer shall designate the type of specimen to be taken. (d) In this section, “serious bodily injury” has the meaning assigned by Section 1.07, Penal Code. NOTE: Effective September 1, 2009, the law allows manda tory blood draws additionally for all arrests for felony driv ing while intoxicated, driving while intoxicated with a child under 15 in the vehicle, and driving while intoxicated causing any bodily injury where a person is transported to a hospital or medical facility. I. Section 724.017 of the Transportation Code governs the procedure for taking of a blood specimen for persons arrested for driving while intoxicated and reads as follows: §724.017 Blood Specimen (a) Only a physician, qualified technician, chemist, regis tered professional nurse, or licensed vocational nurse may take a blood specimen at the request or or der of a peace officer under this chapter. The blood spec i men must be taken in a sanitary place. (b) The person who takes the blood specimen under this chap ter, or the hospital where the blood specimen is taken, is not liable for damages arising from the re quest or order of the peace officer to take the blood spec i men as provided by this chapter if the blood spec i men was taken according to recognized medical pro cedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen. (c) In this section, “qualified technician” does not include emergency medical services personnel. NOTE: §724.017 was also amended effective September 1, 2009, to immunize those who take blood specimens ac cord‐ ing to recognized medical procedures from civil liability for damages arising from the taking of a blood specimen at the request or order of a peace officer or pursuant to a search war rant. However, this does not relieve a person from liabil ity for negligence in the taking of a blood specimen. J. Section 724.019 of the Transportation Code permits a person arrested for driving while intoxicated to have medical per son nel draw a sample for independent or private testing and provides as follows: §724.019 Additional Analysis by Request (a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on re quest and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified tech nician, chemist, or registered professional nurse se lected by the person take for analysis an additional specimen of the person’s blood. (b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a). (c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section. (d) The failure or inability to obtain an additional spec i‐ men or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken at the request or order of the peace officer. (e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not lia ble for damages arising from a person’s request to have a blood specimen taken. IV. Blood Draw Warrants Generally A. As long as the item sought pursuant to the warrant fits into one of the categories set forth in Article 18.02 C.C.P., such item may be seized pursuant to warrant even if it is seized from a suspect’s person or body. Gentry v. State, 640 S.W. 2d 899 (Tex.Crim.App. 1982). Gentry specifically authorized a search warrant to be issued to take blood sample from a crim inal defendant. B. The Court of Criminal Appeals upheld the admission of warrant-seized blood in a misdemeanor DWI-refusal case. Beeman v. State, 86 S.W. 3d 613 (Tex.Crim.App. 2002). Beeman clarified that the implied-consent statute does not
Page 1 and 2: VOICE FOR THE DEFENSE Volume 38 No.
Page 3 and 4: Contents g __ Features F~.ttU[b, g
Page 5 and 6: Benefits . . . “Something that pr
Page 7 and 8: CLE & Events . . . Providing legal
Page 9 and 10: or until after the next legislative
Page 11 and 12: We have taped a one-hour legislativ
Page 13 and 14: en sur ing that it is carried out c
Page 15 and 16: F. R. Buck Files Jr. The Fifth Circ
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Page 19 and 20: nipples) on several occasions as we
Page 21 and 22: Throughout the past 30 years, we ha
Page 23 and 24: . . . Additionally, the district co
Page 25 and 26: ased on those same circumstances, t
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Page 29: I. Introduction There is no aspect
Page 33 and 34: son ably trustworthy sources were r
Page 35 and 36: ments were sworn.” In Sullivan v.
Page 37 and 38: Summit February 24, 2010 Austin Pre
Page 39 and 40: as an unauthorized successive habea
Page 41 and 42: a cial discrimination in jury selec
Page 43 and 44: Death Writ Ex parte Woods, __S.W.3d
Page 45 and 46: (c) The search and seizure of the f
Page 47 and 48: .Fecler:a.l.1ilw Federal Law ill at

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